The Temptation of Elena Kagan

US Supreme Court nominee Elena Kagan takes her seat before answering questions before the Senate Judiciary Committee for her confirmation hearing on Capitol Hill in Washington on June 30, 2010

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Recent Senate Judiciary Committee hearings on Supreme Court nominees have been a waste of everyone’s time, a parade of missed opportunities. In 1995 Professor Elena Kagan, then of the University of Chicago Law School, explained why:

When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public…. Such hearings serve little educative function, except perhaps to reinforce lessons of cynicism that citizens often glean from government. Neither can such hearings contribute toward an evaluation of the Court and a determination whether the nominee would make it a better or worse institution.

She offered clear advice. Though nominees should not declare their voting intentions about specific cases on the horizon, she said,

a nominee can say a great, great deal before making a statement that, under this standard, nears the improper. A nominee, as I have indicated before, usually can comment on judicial methodology, on prior case law, on hypothetical cases, on general issues like affirmative action or abortion.

Her own confirmation hearings in late June were a Galilean moment. How much of her 1995 statement would she recant? Almost all of it, it turned out. She said that Senator Orrin Hatch of Utah had persuaded her, in a private meeting before the hearings, that the “balance” of her earlier statement was “a little off.” So, contrary to her own advice, she would not “grade” either the justices of the present court or the Court’s past decisions, she would not speculate about hypothetical cases, and she would certainly not discuss “general issues like affirmative action or abortion.” On the contrary, she vowed to say nothing from which the public might draw even any general assumptions about the political impact she might have on the Supreme Court.

It was predictable that Kagan would follow this now well-trodden path. She knew that if she disclosed nothing she would soon be a Supreme Court justice for life. If, on the contrary, she was even slightly more adventurous, there was a good chance she would not be confirmed. If she showed herself sympathetic to abortion rights or unsympathetic to gun rights, for instance, Republicans and conservative Democrats would feel bound to join a filibuster to sink her.

The committee senators, for their part, had no reason to press her to be more forthcoming. Democrats had no wish to endanger her appointment, which would be a terrible defeat for the President, and Republicans had no wish to contradict their own repeated and ludicrous declarations (cheerfully endorsed by their…

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